TMI Blog2013 (2) TMI 650X X X X Extracts X X X X X X X X Extracts X X X X ..... dents : R.B. Mathur AJAY RASTOGI J.- Instant writ petition is directed against the order dated September 28, 2012 passed by the assessing authority for assessment year 2009-10. The petitioner is public limited company incorporated under the Companies Act, 1956 and has been registered as a dealer with the Department of Commercial Taxes. It has been alleged in the petition that respondent No. 4 issued three separate purchase orders all dated October 13, 2008 to petitioner-firstly bearing No. 3832 for off-shore supplies of material and equipment; secondly bearing No. 3833 for on-shore supplies; and thirdly bearing No. 3834 for civil, erection, testing and commissioning works and services. C forms were issued by the buyer, respondent No. 4, in course of interState sale transactions. As regards entry tax on the entry of goods under the abovementioned purchase orders dated October 13, 2008, is being paid by respondent No. 4 through the petitioner and for the said entry tax, the requisite return is being filed by respondent No. 4 and assessed by respondent No. 1. As regards, purchase order No. 3834 dated October 13, 2008 which relates to work order for civil, erection, testing ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s served upon the petitioner on August 1, 2012 and was called upon to appear before the assessing authority in terms of show-cause notice on August 9, 2012. Pursuant to the show-cause notice, representative of the petitionercompany appeared before respondent No. 3 and sought adjournment as the matter involves serious legal questions and the matter was posted for August 21, 2012, however, before the next date of hearing, on August 17, 2012, the petitioner addressed a letter to respondent No. 3 requesting him to furnish complete set of documents relied upon by the authority while taking its decision to serve the notice dated July 27, 2012. In response to letter dated August 17, 2012, respondent No. 3 furnished to the petitioner a bundle of documents running into 6,600 pages on September 10, 2012. The representative of the petitioner-company appeared on the date fixed before the assessing authority on September 17, 2012 and requested to grant time to study the voluminous documents supplied on September 10, 2012. Respondent No. 3 issued a notice to representative of the petitionercompany to appear on September 24, 2012, however, with the said notice, respondent No. 3 furnished addit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessing authority, the statutory remedy of appeal is available to the assessee under section 82 of the RVAT Act, 2003 and if the petitioner considers it to be ex parte proceeding initiated against him, he can also invoke the remedy available to him under section 34 of the RVAT Act, 2003 for reassessment. Counsel submits that in view of effective remedy of appeal available to the petitioner under the statute, the writ petition is not maintainable and in this regard he placed reliance on the judgments of the apex court in Whirlpool Corporation v. Registrar of Trade Marks, Mumbai reported in [1998] 8 SCC 1 and United Bank of India v. Satyawati Tondon reported in [2010] 158 Comp Cas 251 (SC); [2010] 8 SCC 110 and taking assistance therefrom, counsel submits that ordinarily the petition under article 226 of the Constitution has not to be entertained where effective remedy is available to the aggrieved person and this rule applies with greater rigour in the matters involving recovery of taxes, cess, fees, other types of public money and the dues of banks and other financial institutions. As regards, objection raised by the petitioner that September 28, 2012 was the last date fixed f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of tax, section 25 of the RVAT Act, 2003 could be invoked by the assessing authority where he has reasons to believe that a dealer has avoided or evaded tax or has not paid tax in accordance with law or has availed of input-tax credit wrongly, he would be under obligation to afford reasonable opportunity of being heard to the dealer-assessee, determining time and period, the taxable turnover of such dealer on which tax has been avoided or evaded and the assessment under sub-section (1) has to be made within a period of six months from the date of making out the case, however, the Commissioner holds competence for reasons to be recorded in writing, to extend the time-limit by a further period not exceeding six months. In the instant case, show-cause notice under sections 24, 25, 55, 61 and 65 of the RVAT Act, 2003 dated July 27, 2012, indisputably was served upon the petitioner on August 1, 2012 and if this court takes note of subsection (3) of section 25 of the RVAT Act, 2003 indeed the time was available with the assessing authority to make assessment under sub-section (1) of section 25 of the RVAT Act, 2003 and the Commissioner holds competence to extend time-limit by a furthe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut down this circle of forensic whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field. There cannot be any dispute on principle that remedy which the law contemplates has to be availed of by the incumbent ordinarily prior to invoking equitable jurisdiction of this court under article 226 of the Constitution and it is also equally true that if an appeal is being preferred, the appellate authority on re-examination of entire material available on record may annul, reverse, modify or quash the order impugned in the facts and circumstances of a given case but the remedy of appeal could be said to be effective if reasonable opportunity of hearing has been afforded to the incumbent and the defence has come on record and considered by the assessing authority which can certainly be re-looked on the appeal being preferred by the assessee for appreciation of his defence. In the instant case, there was no defence on record of the petitionercompany before the assessing authority, as it manifests from the record that for the first time notice under section 25 read with other provisions of the RVAT Act, 2003 dated Jul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which may have an adverse consequences and the remedy of appeal available to the petitioner-assessee, in the opinion of this court, cannot be held to be effective remedy in the eye of law. The honourable Supreme Court in Whirlpool case [1998] 8 SCC 1 has carved out three exceptions where the equitable jurisdiction of this court under article 226 of the Constitution could be invoked and one of the contingency referred to is the violation of principles of natural justice. If the assessing authority, who was exercising quasi-judicial powers, failed to afford reasonable opportunity of hearing, which is expected from it, this court must come to the rescue of the incumbent whose rights provided under the law have been curtailed in an arbitrary manner only on the premise that the order of assessment has to be passed before the deadline and if was at all the requirement, it was expected from the authority to initiate the proceedings prior thereto so that reasonable opportunity could be afforded to the petitioner in coming out with his defence but if the notice itself was issued on the deadline, as being noticed by the assessing authority, was September 30, 2012 at least the assessee ca ..... X X X X Extracts X X X X X X X X Extracts X X X X
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